F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 14 January 2021

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 14 January 2021,

regarding an employment-related dispute concerning the player Tonny Mawejjee

COMPOSITION:

Geoff Thompson (England), Chairman Michele Colucci (Italy), member Mohamed Muzammil (Singapore), member

CLAIMANT / COUNTER-RESPONDENT:

Tonny Mawejjee, Uganda

Represented by Mr Johnny Precious

RESPONDENT / COUNTER-CLAIMANT:

Al Shorta Club, Iraq

Represented by Mr Nezar Ahmed

INTERVENING PARTY:

Uganda Police FC, Uganda

I. FACTS

1. On 27 January 2020, the Ugandan player, Tonny Mawejjee (hereinafter: the Claimant/Counter-Respondent or player) and the Iraqi club Al Shorta Club (hereinafter: the Respondent/Counter-Claimant or club) entered into an employment contract (hereinafter: the contract), valid as from the date of signature until 30 June 2020.

2. Art. IV of the contract foresaw the following:

“a) The value of the contract shall be USD 100,000 (…) payable to the player as follows:

b) A. USD 25,000 (…) at the receipt of the player’s ITC and registration of the player;

c) B: USD 75,000 (…) in five monthly instalments in the amount of USD 15,000 (…) each starting as of 1/2/2020.”

3. Art. XI of the contract provided that “the club and the layer shall attempt to settle their disputes arising from the execution of the contract by negotiation. Should the foregoing fail, FIA shall have the exclusive jurisdiction to settle the disputes arising between the club and the player in connection with the execution of the contract.”

4. According to art. X point 23. Lit. a) and b), “The club shall be entitled to terminate the contract, before its expiring term, by 15 days’ notice in writing for just cause as defined by the jurisprudence of FIFA Dispute Resolution Chamber and the Court of Arbitration for Sport, Lausanne, or for any reason stipulated in the labour law of Iraq (Law no. 37 of 2015) or if the player breaches his obligations towards the club. However, the club also shall be entitled to terminate the contract, before its expiry term, without notice should any of the following violations occur:

a) If the player is absent without valid reason for three consecutive training sessions or for a total of seven inconsecutive training sessions in one season.

b) If the player is absent without valid reason for two consecutive matches of for a total of three inconsecutive matches in one season.”

5. The player explained that in or around January 2020, he negotiated the contract with the club through its representatives, Messrs. Felipe and Sekou.

6. The player however indicated that in the aftermath of signing the contract, he did receive a blurry picture of his visa by Mr Sekou, and requested a better version in order to avoid any issue while entering Iraq. The player further stated that despite his numerous requests, he did not receive a pdf copy of it.

7. Moreover, the player stated that on 9 February 2020, Mr Sekou sent him a ticket for a flight scheduled on 6 February 2020.

8. On 1 March and 10 March 2020, the player formally contacted the club requesting a flight ticket and a visa in the “correct format”, however to no avail.

9. The player stated that in response to his above-mentioned request, the club replied via email on 14 March 2020, by means of which the club declared that the player was provided with a flight ticket and contract in order to arrive on 6 February 2020 but that he failed to turn up. As such, the club concluded that the player was in breach of art. 23 lit. a) and b) of the contract.

10. On 27 April 2020, the Claimant/Counter-Respondent put the Respondent/Counter-Claimant in default and requested a visa, a flight ticket as well as the payment of the signing-on fee amounting to USD 25,000 and the salaries of February, March and April 2020.

11. On 29 May 2020, the Claimant/Counter-Respondent lodged a claim against the Respondent/Counter-Claimant, claiming the following:

- USD 100,000 as the entire value of the contract;

- USD 30,000 “as damages and reimbursement for expenses incurred in the period [he] was in limbo due to this impasse”;

- USD 10,000 as legal fees;

- “release of his ITC from Respondent to any club of his choice”;

- “Any further or other awards you deem necessary”.

12. In this context, the Claimant/Counter-Respondent argued that the club has voluntarily delayed his arrival in Iraq in order to use the COVID-19 pandemic as an excuse to avoid the execution of the contract.

13. In its reply to the Claimant/Counter-Respondent’s claim, the Respondent/Counter-Claimant firstly stated that on 26 January 2020, Mr. Sekou, acting on behalf of the player, approached the club via WhatsApp exploring the possibility of signing his client – the player.

14. The Respondent/Counter-Claimant further stated that on 27 January 2020, it sent to the player, via Mr. Sekou, an unsigned copy of said contract, effective as of 27 January 2020 until 30 June 2020 (hereinafter: the First Contract). On 28 January 2020, the player signed the first contract and returned it to the club through Mr. Sekou. Moreover, the club held that it never signed a copy of the first contract, as this version of the contract was signed exclusevely by the player.

15. According to the Respondent/Counter-Claimant, the player, when signing the first contract, confirmed that he was born on 15 December 1990 and holds the passport no. B14***** which, according to the club, was a fake passport.

16. In this regard, the club explained that consequently, on 28 January 2020, Mr. Sekou sent to the club a different passport of the player holding the no. B11***** and listing his date of birth as 15 December 1986, meaning that the player was 34 years old and not 30.

17. The Respondent/Counter-Claimant added that given the above-mentioned fact, a new contract was drafted so as to reflect the player’s actual date of birth and the genuine passport number. This contract was sent to the player through Mr. Sekou and a signed copy was attached to his claim (hereinafter: the Second Contract).

18. The club highlighted that on an unspecified date, it received from Mr Sekou an “exclusive mandate”, signed by the player on 27 January 2020.

19. Furthermore, the club affirmed that on 4 February 2020, it obtained an entry visa for the player, which allowed him to reside in Iraq for one year.

20. The club held that on 5 February 2020, it bought for the player “returned flight tickets on Turkish Airline: a) departing Entebbe, Uganda, on 6 Feb 2020 and arriving in Baghdad, Iraq on 7 February 2020 and b) departing Baghdad, Iraq on 1 June 2020 and arriving in Entebbe, Uganda on 2 June 2020”.

21. The club sustained to have provided the Turkish Airline with the Visa Deposit Receipt and copy of the player’s Visa which allowed the Turkish Airline to incorporate “Visa on Arrival (Okay to board)” in the booking Passenger Name Record (PNR) and obtained for the player “OK To Board (OTB)” certificate.

22. The club pointed out that, on 5 February 2020 at 8:30 PM Uganda time, it sent to Mr. Felipe a pdf file containing the player’s e-Ticket itinerary, the OTB certificate and the visa, as also evidenced by the snapshots of Mr Nasir’s cell phone, and that at 8.41 PM (i.e. 11 minutes later), Mr. Felipe received the documents while he was with the player at the gymnasium.

23. The club added that on 6 February 2020, the player did not travel to Iraq as per the flight ticket that was sent to him a day before.

24. The club further added that in accordance with clause 8 of the first and second contract, the player was entitled to a maximum of one return flight ticket per season, in economy class. This means that since the he was already provided with a return flight ticket and he chose not to use it, the club was not obligated to provide him with a second flight ticket.

25. Moreover, the club stated that as from 6 February 2020 until 1 March 2020, it received no communications of any kind from the player or his agents.

26. The club further stated that due to the Covid-19 outbreak, on 26 February 2020, the Iraqi Government banned public gatherings, prohibited travel to or from a total of eleven countries and ordered the suspension of schools and universities and the closure of cinemas, cafes, clubs, and other public gathering spots nationwide. Later on 15 March 2020, the Iraqi Government imposed a nationwide curfew and banned travel and all inbound and outbound flights from the country's airports. Such nationwide curfew and complete travel ban was extended several times and added that as a matter of fact, as of 22 June 2020, such curfew and complete travel ban are still active and in force.

27. Moreover, the club held that on 28 February 2020, in view of the deteriorating circumstances and the many travel restrictions issued by various Governments along with flight cancellations by several airlines, the AFC postponed all matches of the AFC competitions until further notice.

28. The club further held that on 1 March 2020, the player sent to the club an email, whereby he alleged the following: “until now you have not sent [sic] me visa (as pdf file) so that I can enter Iraq. You have sent me ticket and photo of visa taken by mobile and with that kind of visa- document I can not travel to Baghdad, as I have been informed. [sic] I will not be allowed to board on plane for flight to Baghdad, as any authorities do not [sic] accept photo (taken by mobile) of visa as valid document”

29. The club highlighted that in his email dated 1 March 2020, the player did not claim that the flight ticket, sent to him on 5 February 2020 with a scheduled departure on 6 February 2020, was received by him three days later. In fact, in said email the player attributed the reason for not traveling to Iraq on 6 February 2020 to the visa document allegedly not sent to him in a pdf format.

30. The club added that on 10 March 2020, the player sent to the club a second email by means of which, inter alia, he stated the following: “I am (…) asking you kindly to solve visas, tickets and at the end payment of my signing fee and salaries issues. As until now I was very patient waiting you to send visas and tickets so that I can come and do my job as professional football player”.

31. The club, by means of correspondence dated 13 March 2020, informed the player that “notwithstanding that [the Respondent] duly provided you with a valid entry visa and an airplane ticket to arrive in Iraq on 6/2/2020, you have not arrived in Iraq to start your employment relationship as per the provisions of the aforementioned contract and hence you have been absent from work since 6/2/2020 without a valid reason. Thus, in accordance with article 23 letters a) and b) of said contract, you are in breach of contract”.

32. The club explained that on 15 March 2020, the player sent to the club another email, by means of which he stated the following:

“First of all claiming that you have sent me visa it's absolutely not truth. Please show me proof when you have sent me valid visa as document with which I could come. I was asking visa and ticket numerous times and as well on 2nd March I have sent you official email informing you that you still have not send me visa and in same email I kindly asked you to send me visa as pdf file, because what you have sent through agent Sekou Mohamed it's ridiculous, sending photo of visa with fingers on it it's not document (actually it's joke) with which I can not travel to Iraq. Please find attached screenshot of the email which I have sent you on 2nd of March asking you to send me visa so that I can come in Iraq. That's as proof for my claims and please send me proof that you have sent to me visa. And please keep in mind that you are answering me on 15 of March, that's 15 days after email I have sent you asking you kindly to send me visa. Hope you understand that with this kind of responds you are just making job easier for my lawyer. Am really looking forward to see proof that you have sent to me visa. Please note that this email will be used as proof in legal dispute between us”

33. The club, on the same day, i.e. on 15 March 2020, sent to the player a correspondence containing the same travel documents that were sent to him on 5 February 2020. In said correspondence, the player was informed of the following:

“With respect to your email of today, I would like to draw your attention to the fact that, and as you acknowledged by yourself, [the Respondent] had provided you with a valid entry visa and an airplane ticket well ahead for your scheduled arrival in Iraq on 6/2/2020. However, from date of the receipt of such visa entry and airplane ticket and until 2 March 2020 (i.e. more than a month later), you have not raised with [the Respondent] your alleged and unfounded assertion that these documents needed to be sent to you in different form. In fact, you waited until the coronavirus outbreak where all travels to and from Iraq were suspended to raise such unfounded assertion.

As far as your request to be presented by the proof that the visa and airplane ticket were duly sent to you prior to your scheduled arrival in Iraq is concerned, kindly find the attached proof.

All in all, you have been absent from work for more than 40 days without a valid reason and hence you are in breach of contract”.

34. The club further explained that on 15 March 2020, a person by the name Mr. Rifat Kecap purportedly acting as an agent to the player sent an email to the club, the content of which reads as follows:

“I am Rifat Kecap agent of the player Tonny Mawejje and I just want officially to inform you that tomorrow (Monday, 16 of March 2020) Iraq Football Association will be officially informed about the issue and previous 3 (three) emails which Tonny Mawejje sent you will be shown as proof. Up to this moment you did not send visa to Tonny Mawejje so that he can come and do his job, even that we asked numerous times to send him visa as pdf file, as otherwise he can't travel to Iraq. Only thing you did, is send visa as photo taken by mobile phone and with that he can't travel.

Just to remind you that by the contract (No 157) which you (Al Shorta Sports Club) signed on 28/1/2020 (contract signed by Dr. Wahab Razaw Ajlan as club representative), you are fine obligated to pay to Tonny Mawejje his signing fee (25.000 USD) and salaries on 1 of February and 1 of March (15.000 USD each salary, totally 30.000 USD in salaries up to this moment) and continue paying 5 monthly salaries totally begging from 1 of February 2020.

Please find as attachment 2nd and 6th page of the contract as proof, as well photo of visa which you sent through agent Sekou Mohamed, and with that kind of "document" he definitely can't travel as we informed you previously and officially through email. In case you need I can send you all 6 pages of contract as proof, as well I have confirm that international transfer certificate of Tonny Mawejje was sent (your request to register him was approved) by Albanian Federation”.

35. With regard to the correspondence sent on 15 March 2020, the club pointed out the following:

“it is very interesting to note that even so the Claimant asserted that he never signed the Second Contract and that his signature on it was forged by the Claimant, see para. 29 of the Claim, in the aforementioned email, the Claimant’s new agent -Mr. Rifat Kecap relied on the Second Contract by precisely stating: “the contract (No 157) which you (Al Shorta Sports Club) signed on 28/1/2020 (contract signed by Dr. Wahab Razaw Ajlan as club representative)”. Moreover, he attached pages 2 and 6 of the Second Contract to his email and offered to send all six pages of the Second Contract as in said email, Mr. Kecap wrote as follows: “Please find as attachment 2nd and 6th page of the contract as proof,…. In case you need I can send you all 6 pages of contract as proof”.

36. Moreover, the club held that by not travelling to Iraq, the player missed without a valid reason 4 official matches and 15 consecutive training sessions. As consequence and in accordance with clause 23 letters a) and b) of the contract, the club maintained to have the right to terminate its contractual relationship with the Claimant for just cause and without notice in case the player is absent without valid reason for two consecutive matches or for three consecutive training sessions.

37. With regard to the above, the club, on 13 March 2020, informed the player that “notwithstanding that [the Respondent] duly provided you with a valid entry visa and an airplane ticket to arrive in Iraq on 6/2/2020, you have not arrived in Iraq to start your employment relationship as per the provisions of the aforementioned contract and hence you have been absent from work since 6/2/2020 without a valid reason. Thus, in accordance with article 23 letters a) and b) of said contract, you are in breach of contract.”

38. Furthermore, in its counterclaim the club maintained that the player did breach his contractual relationship with it and therefore he must pay compensation to the club.

39. In its request for relief, the club claimed the following:

1) “Reject the present Claim in its entirety;

2) Order the Counter-Respondent, Mr. Tonny Mawejje to pay to the Counter-Claimant USD 200,000.00 (Two Hundred Thousand US Dollar) plus default interests of 5% per annum.”

40. In reply to the Respondent/Counter-Claimant’s allegations, the Claimant/Counter-Respondent firstly maintained that: “at no time were Messrs Felipe, Sekou and Hamound his agents.”

41. The player further maintained that the “mandate tendered by Respondents purportedly from him to Mr. Sekou is a forgery. He did not sign it.”

42. Moreover, the player stated that the “Respondent refusal to send the visa in the correct format was either a diversionary antic to delay the Claimants arrival as it would not have taken them 10 minutes to do so, or due to the fact that the agents did not pass the message on to the Respondents. Their claims of providing an Ok To Board are of no effect when they could not provide the visa in the proper format.”

43. In addition, the Claimant/Counter-Respondent sustained that the “Respondents are only trying to look for excuses to justify their negligence by claiming the Claimant only contacted them because lockdown was imminent.”

44. Finally, the Claimant/Counter-Respondent stated that he “had a contract he was ready to fulfil but the Respondent and their agents scuppered the deal, thus forcing him to terminate the contract with Just Cause.”

45. To conclude, the player requested “this humble panel to dismiss the Respondents counter claim and hold that the contract was lawfully terminated with Just Cause and award the Claimant the reliefs sought in the claim.”

46. What is more, after having informed the player’s new club, Uganda Police FC, of the procedure pending before the DRC between the player Tonny Mawejje and Al Shorta Club, and invited the latter, should it wish to do so, to provide its comments on the present affair, it did not submit any statements in reply to the entire file.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 29 May 2020. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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 March 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Ugandan player and an Iraqi club, with the involvement of an Ugandan club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (January 2021 edition), and considering that the claim was lodged on 29 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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, it stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

5. In this this respect, the DRC also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

6. 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.

7. Having said this, the DRC noted that, on one hand, the player lodged a claim against the club in front of FIFA, asking to be awarded compensation for breach of contract. In this sense, the player claimed that the club failed to provide him with a pdf copy of his visa and tickets in order for the player to travel to Iraq.

8. The DRC further acknowledged that the player deems he is entitled to compensation in the amount of USD 140,000 due to the club’s alleged breach of the contract, broken down as follows:

- USD 100,000 as the entire value of the contract;

- USD 30,000 “as damages and reimbursement for expenses incurred in the period [he] was in limbo due to this impasse”;

- USD 10,000 as legal fees

9. Subsequently, the DRC proceeded to give consideration to the club’s position. To this extent, the DRC acknowledged that the club maintained that the tickets and visa were provided to the player on time, i.e. 5 February 2020. The club added that the player, without plausible reasons, did not travel to Iraq as agreed. As consequence, the club requested to be compensated from the player the amount of USD 200,000, as established in the contract.

10. Lastly, the Chamber noted that the Intervening Party, the club Uganda Police FC, did not provide its position in the present matter.

11. In continuation, the Chamber took note of the arguments brought forward by the player as to the non-execution of the relevant agreement, despite the club having apparently completed the necessary travel arrangements on his behalf.

12. However, the Chamber noted that copy of the tickets were provided by the club to the player. Consequently, the Chamber, recalling the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, deemed that the club had proven that it had, in fact, arranged the player’s travel to Iraq.

13. Analysing the circumstances surrounding, the Chamber further outlined that as soon as an employment contract is signed between a club and a player, rights and responsibilities ensue on both sides without being subject to any particular condition. In this respect, the DRC referred to its well-established jurisprudence and emphasised that, as a general rule, it is the club´s duty and responsibility to act accordingly in order to obtain, if necessary, a work permit or a visa for its players prior to the signing of an employment contract or during its period of validity, in order for players to be able to legally enter a particular country and be in a position to render their services to the club.

14. In this respect, the Chamber came to the conclusion that the club, by providing the player with a return ticket and the visa on 5 February 2020, carried out the necessary arrangements in order for the player to enter the country as of February 2020.

15. On account of the above, the Chamber concluded that the club was not liable for the failure to execute the terms of the employment contract without just cause, as claimed by the player.

16. In continuation, the DRC noted from the documentation and evidence on file that the club, after the player failure to join the team on 6 February 2020, it did not contact the player until mid-March 2020.

17. On account of the above circumstances, the Chamber established that the club had no longer been interested in the player’s services. Such conduct, in the Chamber’s view, led to the conclusion that not even the player is liable for the failure to the execution of the terms of the employment contract without just cause.

18. In light of the foregoing, and bearing in mind the evidence produced on file, the DRC concluded that both the claim filed by the Claimant/Counter-Respondent and the counterclaim filed by the Respondent/Counter-Claimant should be rejected.

19. Finally, the Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

20. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, Tonny Mawejjee, is rejected.

2. The counterclaim of the Respondent/Counter-Claimant, Al Shorta Club, is rejected.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE FINDINGS OF THE DECISION:

In accordance with arts. 15 and 18 of the Procedural Rules, this correspondence only communicates the findings of the decision without grounds.

Should any of the parties wish to receive the grounds of the decision, a written request must be received by FIFA, within 10 days of receipt of notification of the findings of the decision. Failure to do so within the stated deadline will result in the decision becoming final and binding and the parties being deemed to have waived their rights to file an appeal.

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