FIFA - Decisión disputa Komolafe 28092023

REF. FPSD-10641

Decision of the Dispute Resolution Chamber passed on 28 September 2023 regarding an employment-related dispute concerning the player Seun Paul Komolafe BY: Lívia Silva Kägi (Brazil/Switzerland), Deputy Chairperson Laurel Vaurasi (Fiji), member Khadija Timera (Senegal), member

CLAIMANT:

KSV 1919, Austria Represented by Mr Sanel Masic

RESPONDENT 1:

Seun Paul Komolafe, Nigeria Represented by Jonás Vallina

RESPONDENT 2:

PFC Qizilqum, Uzbekistan pg. 2

REF. FPSD-10641

I. Facts of the case

1. On 24 January 2020, the Nigerian player Seun Paul Komolafe (hereinafter the Respondent 1 or the Player) and the Austrian club KSV 1919 (hereinafter the Claimant or KSV 1919) concluded first employment agreement (hereinafter the First Employment Agreement), valid as from 6 February 2020 until 31 December 2020.

2. On 1 January 2021, the Claimant and the Respondent (jointly referred to as the Parties) concluded second employment agreement (hereinafter the Second Employment Agreement), valid as from 1 January 2021 until 31 December 2021.

The following contract is the basis of this claim as KSV 1919 claims that the Player signed and then breached this contract:

3. On 21 December 2021, the Parties concluded third employment agreement (hereinafter the Third Employment Agreement), valid as from 1 January 2022 until 31 December 2023.

4. In Clause 4.1 and Clause 4.5 of the Third Employment Agreement, the Parties agreed upon a fee of EUR 1,800 (gross), payable 14times/year. The salaries were to be paid on 15th day

of the following month.

5. In Clause 8.8 of the Third Employment Agreement, the Parties agreed upon a compensation clause: “Any compensation due under to Art. 17 of the FlFA Regulations regarding the status and transfer of players shall be assessed at € 120,000 (in words: one hundred and twenty thousand euros).”

6. On 21 December 2021, the Player allegedly initiated a residence application process with the local authority. For the purposes of the residence application process, the Player allegedly handed in the signed Third Employment Agreement.

7. KSV 1919 alleged that in January the Player did not return after the Christmas break.

8. According to the Player, the latter received a document on 21 January 2022, which indicated that the Player can be engaged on loan. The Player allegedly never signed the said document.

9. As per the e-mail correspondence on 3 March 2022, the local authority allegedly provided the Claimant with the Third Employment Agreement. In this respect, the local authority indicated: “Attached is the player contract that was handed in person in the course of the application on 21.12.2021.” pg. 3

REF. FPSD-10641

10. On 27 May and 7 June 2022, the Claimant and the Austrian Football Association (the ÖFB), sent a letter to FIFA, informing of the above and asking to examine the situation.

11. In its reply dated 21 April 2023, FIFA invited the Claimant to seek for legal advice, explaining that “[FIFA is] not in a position to provide legal advice on specific cases or situations”.

12. On 22 February 2022, the Player signed a new employment agreement (hereinafter the New Employment Agreement) with the Uzbekistani club PFC Qizilqum (hereinafter Respondent 2) valid as from 15 February 2022 until 15 December 2022.

13. In accordance with Clause 7 of the New Employment Agreement, the Player is entitled to a

monthly salary of USD 10,000.

14. On 26 February 2022, the Respondent 2 requested the Player’s International Transfer

Certificate (ITC).

15. In accordance with Transfer Matching System (TMS), the Player was registered with the Respondent 2 on 8 March 2022.

II. Proceedings before FIFA

16. On 21 June 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 Claimant

17. The requests for relief of the Claimant were the following: “a) The present claim is admissible; b) Seun Paul KOMOLAFE is responsible for having terminated the contractual relationship with KSV 1919 without just cause; and that he shall pay compensation to KSV 1919 in the amount of EUR 120,000.00 (one hundred twenty thousand euros); c) In addition, Seun Paul KOMOLAFE shall pay interests of 5% p.a. on said amount as from 26.02.2022 until the date of effective payment; d) PFC Qizilkum is jointly liable to pay said compensation and interests to KSV 1919; e) Sporting sanctions shall be imposed on Seun Paul KOMOLAFE and on PFC Qizilkum.”

18. In its claim, the Claimant alleged that the “Third Contract was terminated de facto by the Player when signing a new employment contract with the Second Respondent and that this termination was without just cause.”

19. Due to the above, the Claimant requested compensation in the amount of EUR 120,000 as per the liquidated damage clause contained in the Clause 8.8 of the Third Employment pg. 4

REF. FPSD-10641

Agreement. In this respect, the Claimant insisted that said clause is reciprocal and proportionate. b. Position of the Respondent 1

20. In its reply, the Player argued that the claim should be rejected as “[t]he employment

contract between Seun Paul Komolafe and the Claimant has naturally terminated on 31.12.2021.” What is more, the Player contested signing of the Third Employment Contract.

21. The Player argued that following is evidence thereof: − “The Claimant did not open any disciplinary file against the First Respondent if the club considered the player was under contract. − The Claimant did not notice or communicate anything by email or telephone to the First Respondent or Second Respondent, if the club considered the player was under contract. − The Claimant did not provide any flight tickets as usually have to be done, to the First Respondent, if the club considered the player was under contract. − There is not any communication from the Claimant to the First or Second Respondent at the time of his registration in TMS by 26 February 2022. − The Claimant did not produce any payments to the First Respondent on due time nor after December 2021. − The Claimant did not opposite to the contract engage as free transfer player in the TMS system at the time of his new registration by 26 February 2022. − The Claimant did not success to the signature of the player of the Agreement on 21

January 2022. − Always the preference of the player was to continue in Austria or secondary in European Leagues. − The only resident card of the player in Austria expired in 29.01.2022.” c. Position of the Respondent 2

22. Despite being invited to do so, the Respondent 2 failed to reply to the claim.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

23. 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 21 June 2023 and submitted for decision on 28 September 2023. Taking into account the wording of art. 34 of the

March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter pg. 5 REF. FPSD-10641 the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

24. 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 May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Nigerian player and an Austrian club.

25. 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 (May 2023 edition) and considering that the present claim was lodged on 21 June 2023, the May 2023edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

26. 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 TMS.

c. Merits of the dispute

27. 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

28. 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 club against his former Player and his new club.

29. The Chamber started to recall the arguments of the Parties. In particular, the DRC noted that Claimant argued that it signed a Third Employment Agreement with the Player, and pg. 6

REF. FPSD-10641 that the latter simultaneously signed another contract with the new club. Hence, the Claimant was of the opinion that the player breached its contractual obligations and shall pay compensation.

30. On the other hand, the DRC noted that the Player argued that after the natural expiry of the Second Contract with the Claimant (i.e. on 31 December 2021), he was a free agent.

31. In this context, the Chamber acknowledged that that there is lack of clarity regarding the Third Employment Agreement. Turning their attention to the factual framework, the Chamber was of the opinion that there is no need to rule upon the validity of the Third Employment Agreement as, in any event, there is clear evidence that none of the parties wished to execute the said contract.

32. In this regard, the DRC pointed to the following facts: (i) the Claimant did not request the Player to report for duty and/or demanded specific performance in terms of the alleged contract concluded; (ii) the Claimant never warned the Player about undue absence; (iii) the Claimant proposed a free loan; (iv) the Claimant did not object to the delivery of the Player’s ITC; (v) the Claimant lodged the claim only 1.5 year after the Player’s departure.

33. The Chamber also pointed out to the lack of interest on behalf of the Player by signing a

new contract with Respondent 2.

34. Based on the above, the DRC concluded that it is clear from the Parties’ behaviour that they mutually departed from the employment relationship as they clearly showed no interest in continuing it. ii. Consequences

35. Having stated the above, the members of the Chamber rejected the claim.

d. Costs

36. 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.

37. 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.

38. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 7

REF. FPSD-10641 pg. 8

REF. FPSD-10641

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, KSV 1919, is rejected.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 9

REF. FPSD-10641

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. 10