F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 5 December 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 5 December 2019,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay), member

Stijn Boeykens (Belgium), member

Stefano La Porta (Italy), member

Abu Nayeem Shohag (Bangladesh), member

on the claim presented by the club,

Fosa Juniors FC, Madagascar,

represented by Mr Patrice van Oostaijen

as Claimant

against the player,

Andriamirado Aro Hasina Andrianarimanana, Madagascar

as Respondent I

and the club,

Kaizer Chiefs FC, South Africa

as Respondent II

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. According to the club Fosa Juniors Fc (hereinafter: the Claimant or Fosa), on 1 November 2016, the player Andriamirado Aro Hasina Andrianarimanana (hereinafter: the Respondent I or the player) and Fosa signed an employment contract (hereinafter: the contract), valid as from the date of signature until 31 October 2020. The contract was entitled “contrat de joueur professionnel”.

2. In accordance with the contract, the player was entitled to the following remuneration:

 Malagasy Ariary (MGA) 1,500,000 gross as monthly salary, payable at the end of each month;

 An apartment, transportation, food, sports equipment, provided by the club.

3. Art. 8 of the contract provided that “in case of serious misconduct of the player, the club may terminate this contract without notice at any time by means of a simple notification.

The club reserves the right to claim damages and interest as well as to appeal to any other national or international jurisdiction, within the framework of the settlement of a dispute involving the player, or a fault of the player, or more generally for any breach of the obligations related to this contract.

The contract negotiation or the non-renewal of the contract has its due term by the signature of a contract with another club gives rise to the payment of a termination indemnity in favor of the club”.

4. On 7 June 2018, the player and the club Kaizer Chiefs FC (hereinafter: the Respondent II or Kaizer Chiefs) signed a proposal (hereinafter: the proposal) for the player to join Kaizer Chiefs, “for a duration of 2 years plus 1 year in option”, with a remuneration of :

 South African Rand (ZAR) 60,000 “from 1 July 2018 to 30 June 2019”,

 ZAR 65,000 “from 1 July 2019 to 30 June 2020” and

 ZAR 70,000 “from 1 July 2020 to 30 June 2021- option”

 ZAR 10,000 per month as accommodation

 “image & autograph rights: the club shall pay for the services of the player an amount of ZAR 960,000 for the duration of the contract as follows:

- ZAR 280,000 on or before 31 July 2018;

- ZAR 320,000 on or before 31 July 2019;

- ZAR 360,000 on or before 31 July 2020 – Option”.

5. On 15 and 29 June 2018, Fosa contacted Kaizer Chiefs via email, informing it that it was aware of its interest in the player’s services, but that Kaizer Chiefs should contact Fosa directly since the player had a professional contract with Fosa.

6. In reply to the emails of Fosa, on 29 June 2018, Kaizer Chiefs replied that the player informed it that he was an amateur player, free of any professional contract. Kaizer Chiefs informed Fosa that the player had agreed and signed the proposal of Kaizer Chiefs on 1 July 2018. Kaizer Chiefs explained that “the premier league football in Madagascar is not a professional league and that the clubs are playing with an amateur status”.

7. On 4 July 2018, Kaizer Chiefs contacted Fosa and made the following offer (hereinafter: the offer) to Fosa “after consultation with our Board of Directors and Football Manager the compensation offered to Fosa Juniors Fc is USD 25,000. Thrusting you will accept our offer for which we wish to thank you in anticipation”.

8. In reply to the offer, Fosa declined the offer as it «is far below the expectation of our Board of Directors”.

9. On 7 August 2018, the player and Kaizer Chiefs signed an employment contract (hereinafter: the new contract) valid as from 1 July 2018 until 30 June 2021 according to which he was entitled to the remuneration provided in the proposal (cf. par. 4 above).

10. According to the information currently available in the Transfer Matching System (TMS), on 14 August 2018, the South African Football Association (SAFA) requested the ITC from the Fédération Malagasy de Football (FMF), which was rejected by the FMF under the explanation that “there has been no mutual agreement regarding early termination of the employment contract between the former club and the professional player”.

11. Still according to the information currently available in the TMS, on 12 September 2018, the Single Judge of the Players’ Status Committee passed a decision authorizing the provisional registration of the player with Kaizer Chiefs.

12. On 11 December 2018, Fosa lodged a claim in front of FIFA against the player and Kaizer Chiefs for breach of contract, requesting the total amount of EUR 150,000, plus 5% interest “as from the abovementioned amount is due”, corresponding to:  EUR 61,000 as the average between the remuneration due until the expiry of the contract and the remuneration due under the new contract, which Fosa calculated as follows: a) MGA 82,000,000 which it corresponded to EUR 21,000, as residual value of the contract between 1 July 2018 until 31 October 2020. Fosa based its calculation on the assumption that the player received from the club on a monthly basis approximatively MGA 3,000,000 including in that amount salary, various bonuses, the costs for the apartment, equipment, internet, transportation, “pocket money”, sports insurance; b) EUR 100,000, from a conversion of ZAR 1,578,330 as “the remuneration under the new contract […] based on the proposal”;  Compensation due to the specificity of sport;  Sporting sanctions to be imposed on the player and Kaizer Chiefs;  Legal fees reimbursement.

13. The player further requested the imposition of sporting sanctions against the club.

14. According to Fosa, the player was registered with the same club as a professional as from April 2016 until 14 March 2018 and also played for the national team of Madagascar.

15. Moreover, Fosa considered that the player was a professional player with an employment contract and that therefore, by leaving the club and signing another contract with another club, he breached the contract.

16. Furthermore, Fosa explained that in accordance with CAS jurisprudence, in order to assess the remuneration of a player, not only the salary had to be taken into account but also bonuses, rights such as holidays, accommodation expenses.

17. Fosa also stated that the player participated in 77 out of 95 matches with Fosa under his contract, and played CAF confederations matches.

18. Finally, Fosa maintained that it received an offer from Kaizer Chiefs for the services of the player of an amount of EUR 25,000 (cf. point 7 above), which it considered meant that Kaizer Chiefs recognized the status of the player as a professional.

19. In reply to the claim of Fosa, the player denied having signed an employment contract with Fosa and claimed that the signature on the contract was forged.

20. Moreover, the player denied that Fosa paid for any of his expenses beside his salary and argued that he was not paid more than the expenses he incurred for playing football.

21. In its reply, Kaizer Chiefs argued that the proposal was signed by the player on 1 July 2018 and that it was the player’s first professional contract.

22. Moreover, Kaizer Chiefs alleged that Fosa had intimidated the player and confiscated his passport.

23. Furthermore, Kaizer Chiefs held that, should the DRC find the player and Kaizer Chiefs liable, the compensation should be limited to EUR 32,546.18 which it calculated as been the average of the earning between the old contract and the new one.

24. Upon being requested to do, Fosa provided the original of the contract to the FIFA administration.

25. In its replica, Fosa reiterated its previous arguments, underlining that the player was receiving the equivalent to EUR 740 as monthly salary, amount which “by far exceed the costs the player effectively incurred”.

26. In this context, Fosa provided invoices to demonstrate that is paid for the accommodation of the player.

27. Moreover Fosa further held that Kaizer Chiefs never contacted it to get information on the status of the player.

28. In their duplica, the player and Kaizer Chiefs held that Fosa did not provide a proof of the registration of the player within the FMF.

29. The player held that his expenses amounted to MGA 1,600,000 while his salary was MGA 1,500,000.

30. Finally, Kaizer Chiefs and the player submitted an expert report on the signature of the contract, which concluded that the contract was forged.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 11 December 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2019), 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 Malagasy club, a Malagasy player and a South African club.

3. In continuation, 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 (edition 2019), and considering that the present claim was lodged on 11 December 2018, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. Having considered all the argumentation put forward by the parties, the Chamber acknowledged that the first issue on which it had to decide was whether the Claimant and Respondent I had in fact concluded an employment contract on 1 November 2016. The Chamber observed that whereas the Claimant holds that such contract had indeed been concluded with the player, the player denied having signed that contract and alleged that his signature on the contract submitted by Fosa is a forgery.

6. In this respect, the Chamber underlined that, upon request, it was provided with the alleged original version of the employment contract dated 1 November 2016. At this stage, the DRC considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signatures or documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.

7. In this regard, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the alleged original document. In this context, the Chamber also acknowledged that it had been provided with an expert report from both Respondents regarding the handwriting examinations.

8. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signature on the contract dated 1 November 2016 to the other documentation on file, the DRC concluded that for a layman the player’s signatures on the various documents available, including the proposal and the contract eventually signed by the player and Kaizer Chiefs, seem to be alike and genuine.

9. On account of the aforementioned considerations, the members of the DRC concluded that the Claimant and the player entered into an employment contract on 1 November 2016 and proceeded to examine the further argumentations of the parties.

10. In this respect, the Chamber acknowledged that the Claimant argued that the player terminated the contract without just cause by entering into a new contract with Kaizer Chiefs valid as of 1 July 2018.

11. Equally, the DRC noted that the Respondents averred that the first professional employment contract signed by the player was only the one with Kaizer Chiefs.

12. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine whether the Claimant and the player concluded a professional employment contract on 1 November 2016. In other words, whether the player was a professional while rendering his services to the Claimant.

13. In so doing, the Chamber referred to art. 2 par. 2 of the Regulations, which stipulates that “A professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs”.

14. Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations as well as the amounts payable to the player on the basis of the contract, the members of the Chamber noted that the player did not contest receiving a salary from Fosa but, rather, that said salary allegedly did not cover his expenses as football player.

15. Consequently, the DRC unanimously concluded that the player received a salary as per the criteria set out in art. 2 par. 2 of the Regulations, even more as the player did not provide any evidence in order to prove the contrary.

16. What is more, the members of the DRC wished to recall that Kaizer Chiefs offered the amount of USD 25,000 as transfer compensation to Fosa, in order to register the player as a professional.

17. On account of all the above-mentioned considerations, the Chamber concurred that the player was to be considered a professional when he was under contract with the Claimant.

18. As a consequence thereof, being undisputed by the parties that the player and Kaizer Chiefs entered into an employment contract when the player was still under contract with Fosa, the Chamber had no other option than to conclude that the player terminated the contract with the Claimant without just cause.

19. Subsequently, the DRC established that, in accordance with art. 17 par. 1 of the Regulations, the player is liable to pay compensation to the Claimant for breach of contract. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. Respondent II, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of Respondent II is independent from the question as to whether the new club has committed an inducement to contractual breach or any other kind of involvement by the new club. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport (CAS).

20. Having stated the above, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of 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 as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party.

21. 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 said employment contract at the basis of the matter at stake.

22. As a consequence, the members of the Chamber determined that the amount of compensation payable in the case at stake had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations.

23. Consequently, in order to estimate the amount of compensation due to the Claimant in the present case, the Chamber firstly turned its attention to the financial terms of the player’s former contract and the new contract, the value of which constitutes an essential criterion in the calculation of the amount of compensation in accordance with art. 17 par. 1 of the Regulations. In this context, the members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the existing contract and the new contract in the calculation of the amount of compensation, thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club.

24. In this regard, the DRC established, on the one hand, that the total value of the contract signed by the player with Fosa, for the remaining contractual period, namely as of 1 July 2018 until 31 October 2020, amounted to MGA 42,000,000. On the other hand, the members of the Chamber established that the value of the new contract concluded by the player with Kaizer Chiefs, for the same period, was ZAR 1,108,333, approximately equivalent to MGA 273,144,000.

25. Consequently, on account of the above-mentioned considerations and in view of the specific circumstances of this case, the Dispute Resolution Chamber decided that the player shall pay to the Claimant compensation for breach of contract in the total amount of MGA 157,572,000 which is to be considered a reasonable and justified amount in the case at hand.

26. In addition and with regard to the Claimant's request for interest, the Chamber decided that the Claimant is entitled to 5% interest p.a. on said amount as of 11 December 2018 until the date of effective payment.

27. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. Kaizer Chiefs, shall be jointly and severally liable for the payment of the aforementioned amount of compensation.

28. In continuation, the Chamber focussed its attention on the further consequences of the breach of contract in question and, in this respect, it addressed the question of sporting sanctions against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on any player found to be in breach of contract during the protected period.

29. In this respect, the members of the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this regard, the DRC pointed out that the player, whose date of birth is 21 April 1991, was 25 years of age when he signed his employment contract with the Claimant on 1 November 2016, entailing that the unilateral termination of the contract occurred within the applicable protected period.

30. With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a suspension of four months on a player’s eligibility to participate in official matches is the minimum sporting sanction that can be imposed for breach of contract during the protected period. This sanction, according to the explicit wording of the relevant provision, can be extended in case of aggravating circumstances. In other words, the Regulations intend to guarantee a restriction on the player’s eligibility of four months as the minimum sanction. Therefore, the relevant provision does not provide for a possibility to the deciding body to reduce the sanction under the fixed minimum duration in case of mitigating circumstances.

31. With the above in mind, the members of the Chamber wished to recall the sequence of the events of the present matter. First, the DRC recalled that, on 15 and 29 June 2018, the Claimant informed Respondent II that the player was under contract with Fosa. Then, on 4 July 2018, Respondent I presented an offer to the Claimant for the transfer of the player, which was rejected by Fosa. Finally, on 7 August 2018, the player signed an employment contract with Respondent II.

32. Having stated that, the DRC was eager to emphasise that the player raised his income considerably by concluding an employment contract with Respondent II.

33. Consequently, taking into account the circumstances surrounding the present matter, the DRC decided that, by virtue of art. 17 par. 3 of the Regulations, the Respondent player is to be sanctioned with a restriction of four months on his eligibility to participate in official matches.

34. Finally, the members of the Chamber turned their attention to the question of whether, in view of art. 17 par. 4 of the Regulations, the player’s new club, i.e. Respondent II, must be considered to have induced the player to unilaterally terminate his contract with the Claimant without just cause during the protected period and, therefore, shall be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration periods.

35. In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional player who has terminated his previous contract without just cause has induced that professional to commit a breach. Consequently, the Chamber pointed out that the party that is presumed to have induced the player to commit a breach carries the burden of proof to demonstrate the contrary.

36. Having stated the above, the members of the Chamber took note that, based on the documentation submitted by the parties, it appears that Respondent II presented an offer for the transfer of the player to Fosa on 4 July 2018. However, despite such offer being eventually rejected by the Claimant, the Respondent II nevertheless concluded an employment contract with the player.

37. In light of the aforementioned, and given that Respondent II did not provide any other specific or plausible explanation as to its possible non-involvement in the player’s decision to unilaterally terminate his employment contract with the Claimant, the DRC had no option other than to conclude that Respondent II had not been able to reverse the presumption contained in art. 17 par. 4 of the Regulations and that, accordingly, the latter had induced the player to unilaterally terminate his employment contract with the Claimant.

38. In view of the above, the Chamber decided that, in accordance with art. 17 par. 4 of the Regulations, Respondent II shall be banned from registering any new players, either nationally or internationally, for the two entire and consecutive registration periods following the notification of the present decision. Respondent II shall be able to register new players, either nationally or internationally, only as of the next registration period following the complete serving of the relevant sporting sanction. In particular, it may not make use of the exception and the provisional measures stipulated in art. 6 par. 1 of the Regulations in order to register players at an earlier stage.

39. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Fosa Juniors FC, is partially accepted.

2. Respondent I, Andriamirado Aro Hasina Andrianarimanana, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of MGA 157,572,000 plus 5% interest p.a. as from 11 December 2018 until the date of effective payment.

3. Respondent II, Kaizer Chiefs FC, is jointly and severally liable for the payment of the aforementioned compensation.

4. In the event that the aforementioned amount plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent I and Respondent II, immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

7. A restriction of four months on his eligibility to play in official matches is imposed on the Respondent I, Andriamirado Aro Hasina Andrianarimanana. This sanction applies with immediate effect as of the date of notification of the present decision. The sporting sanction shall remain suspended in the period between the last official match of the season and the first official match of the next season, in both cases including national cups and international championships for clubs.

8. Respondent II, Kaizer Chiefs FC, shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer