FIFA - Decisión disputa Eduok 11052023

REF. FPSD-6878

Decision of the Dispute Resolution Chamber passed on 11 May 2023 regarding an employment-related dispute concerning the player Samuel Emen Eduok BY: Clifford J. Hendel (USA & France), Deputy Chairperson Stella Maris Juncos (Argentina), Member Alejandro Atilio Taraborrelli (Argentina/Italy), Member

CLAIMANT:

Buyuksehir Belediye Erzurumspor, Türkiye

RESPONDENT:

Samuel Emem Eduok, Nigeria Represented by Boro Rajic pg. 2

REF. FPSD-6878

I. Facts of the case

1. On 31 January 2019, the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: the club or the Claimant) and the Nigerian player, Samuel Emen Eduok (hereinafter: the player or the Respondent) signed an employment contract (hereinafter: the contract).

2. As from 21 June 2019, the said parties are no longer in an employment relationship, since – on the said date – the player unilaterally terminated the contract.

3. On 19 July 2019, following a dispute between the said parties, they signed a settlement agreement, (hereinafter: the settlement agreement).

4. Clause 3 of the settlement agreement states the following: “Subject to the conditions set forth under this Agreement, the Player shall pay to Erzurumspor the following compensation

(hereinafter, the “Compensation”): a) either 15% of the future transfer compensation, VAT, bank expenses, income taxes excluded, if any, but in any case not less than EUR 250,000 or; b) EUR 250,000”.

5. Clause 4 of the settlement agreement reads as follows: “The Parties acknowledge and agree that the payment of the Compensation stipulated in article 3/ a) above is subject to the Player

receiving an amount at least equivalent from the Player's new club as follows: 15 % of the future transfer· compensation received by the Player's new club or at least EUR 250,000 paid by the Player's new club to the Player. Such Compensation shall be paid to Erzurumspor 45 days following his future transfer”.

6. Clause 5 of the settlement agreement provides the following: “In the event that the Player's employment contract with the Player's new club duly expires, is renewed before or after expiry or is mutually terminated or unilaterally terminated or the Player leaves his new club without the payment of a transfer fee, and in case the Player retires, then Erzurumspor shall be entitled to the amount stipulated in article 3/ b) above. Such Compensation shall be paid to Erzurumspor 45 days following the termination or renewal of the Player's agreement with his new club”.

7. Clause 6 of the Settlement Agreement states the following: “The Player guarantees to Erzurumspor that in addition to the conditions stipulated in clause 4, Player’s entitlement to the amount stipulated in clause 5/ will be inserted in his employment contract which will be signed between him and the new club and such clause will cover the entitlement of the Player to the abovementioned amount in case conditions stipulated in clause 5/ will occur. In case such clause is not inserted in the employment contract between the Player and the new club, Erzurumspor’s entitlement to the amounts stipulated in clauses 3/ a) and 3/ b) will not be contingent upon the Player effectively receiving any payment from his new club and such amount will be due and payable to Erzurumspor by the Player in case any of the conditions mentioned in clause 4/ or clause 5/ are fulfilled”. pg. 3

REF. FPSD-6878

8. Clause 12 of the Settlement Agreement reads as follows: “As a condition precedent to the entry into force of the present Agreement, the Player shall sign a new contract with a new club.

If the Player does not have a valid contract with a new club by 22 July 2019, the Parties shall obligation to execute this Agreement”.

9. On 20 July 2019, the Respondent signed a new contract with the Croatian club, HNK Hajduk,

(hereinafter: the new club / parent club), valid as from the date of signature until 30 June 2022.

10. On 29 August 2020, the Respondent was transferred on loan, free of payment to the Turkish club, Konyaspor, for the period as from 26 August 2020 until 31 May 2021.

11. On 1 July 2021, upon expiration of the loan agreement with Konyaspor, the player entered into an annexe to the contract (hereinafter: the annexe) with his parent club, thereby – inter alia –extending the term of the contract until 31 May 2023 and modifying the remuneration due to the player.

II. Proceedings before FIFA

a. Position of the Claimant

12. On 27 July 2022, the Claimant lodged a claim against the Respondent before the Football Tribunal, requesting to be awarded EUR 250,000, plus 5% interest p.a. as from “the day after such amount became due, i.e. 45 days following his renewal , until the date of effective payment”.

13. In its claim, the Claimant argued that – upon the conclusion of the annexe – the parties de facto novated their employment relationship, which, in accordance with clause 5 of the settlement agreement, triggered the payment of the amount of EUR 250,000, due under clauses 3 and 4 of the settlement agreement.

b. Position of the Respondent

14. In its reply, the Respondent maintained the following: - That the Claimant did not meet its burden of proof as to the fact that the contract between the player and his parent club was novated; - That the wording of the settlement agreement is vague and it cannot be

concluded from its wording that the renewal of the contract would trigger the payment of the amount of EUR 250,000; pg. 4 REF. FPSD-6878 - That, since the wording of the settlement agreement is rather confusing, the principle of in dubio contra proferentem applies and it shall be interpreted against the Claimant (the party that drafted it).

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

15. 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 27 July 2022 and submitted for decision on 11 May 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.

16. 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 (March 2022 edition), the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from a club from Türkiye and a player from Nigeria.

17. However, and albeit not disputed by the parties, the members of the DRC concluded that the jurisdiction of the Football Tribunal must be analysed ex-officio in the case at hand, insofar as the present dispute emanates from a settlement agreement concluded between the parties on 19 July 2019, when no employment relationship was binding the parties any longer, considering that the settlement agreement was concluded on 19 July 2019 and that

the player had previously terminated the contractual relationship on 21 June 2019. In this context, the DRC underscored that the settlement agreement was concluded because of the unilateral termination of the employment contract made by the player and, as such, the nature of the settlement agreement is employment-related. Thus the Chamber determined that the Football Tribunal has jurisdiction to hear the present matter cf. art. 22 para. 1 b.) of the Regulations on the Status and Transfer of Players (March 2023 edition).

18. 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 27 July 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. pg. 5

REF. FPSD-6878

b. Burden of proof

19. 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

20. 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

21. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that despite the argumentation of the club, it is undisputed (as this extreme was verified by the Chamber with the information available in the Transfer Matching System) that the player and his new club / parent club entered into the annexe, thereby modifying, inter alia, the term of the contract and the remuneration due to the player, which, constitutes a renewal / novation of the employment relationship, underscored the DRC.

22. Thus, since clause 5 is clear when establishing that upon – inter alia – the renewal of the contract entered into between the Respondent and HNK Hajduk (the parent club), the amount of EUR 250,000 would be payable 45 days following the occurrence of the event triggering the payment, i.e. 45 days after the renewal of the contract, and it is undisputed that the player has failed to proceed with the said payment, the DRC unanimously concluded that the Respondent shall be ordered to pay the said amount to the Claimant in accordance with the legal principle: pacta sunt servanda. ii. Consequences

23. 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 Respondent. pg. 6

REF. FPSD-6878

24. In view of all of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of EUR 250,000.

25. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 250,000 as from 16 August 2021 (the 46th day following

the date on which the annexe was concluding and the contract between the Respondent and his parent club was novated) until the date of effective payment. iii. Compliance with monetary decisions

26. 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.

27. In this regard, the Chamber highlighted that, against players, the consequence of the failure to pay the relevant amounts in due time shall consist of a restriction on playing in official matches up until the due amounts are paid. The overall maximum duration of the restriction shall be of up to six months.

28. Therefore, bearing in mind the above, the Chamber decided that the player must pay the full amount due (including all applicable interest) to the club within 45 days of notification of the decision, failing which, at the request of the creditor, a restriction on playing in official matches for the maximum duration of six months shall become immediately effective on the player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

29. The player shall make full payment (including all applicable interest) to the bank account provided by the club in the Bank Account Registration Form, which is attached to the present decision.

30. The Chamber 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. pg. 7

REF. FPSD-6878

d. Costs

31. 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.

32. 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.

33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

IV. Decision of the Dispute Resolution Chamber

1. The Football Tribunal has jurisdiction to hear the claim of the Claimant, Erzurumspor FK.

2. The claim of the Claimant is accepted.

3. The Respondent, Samuel Emem Eduok, must pay to the Claimant the following amount(s): - EUR 250,000 as outstanding remuneration plus 5% interest p.a. as from 16 August 2021 until the date of effective payment.

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 imposed with a restriction on playing in official matches up until the due amounts are paid. The overall maximum duration of the restriction shall be of up to six months on playing in official matches.

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 six months. pg. 8

REF. FPSD-6878

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 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 | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 9