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 10 December 2020

Decision of the

Dispute Resolution Chamber

passed on 10 December 2020,

regarding an employment-related dispute concerning the player Chawanangwa Kaonga

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Pavel Pivovarov (Russia), member Stijn Boeykens (Belgium), member

CLAIMANT:

CD da Costa do Sol, Mozambique

RESPONDENT 1:

Mr Chawanangwa Kaonga, Malawi

Represented by Mr Lufuno Patience Ramarumo

RESPONDENT 2:

TS Sporting, South Africa

Represented by Mr Lufuno Patience Ramarumo

I. FACTS OF THE CASE

1. On 28 September 2017, the Mozambican club, CD da Costa do Sol, (hereinafter: the Claimant), and the Malawi player, Chawanagwa Koanga (hereinafter: the Respondent 1 or Player) signed a an employment contract valid as of 1 January 2018 until 31 October 2019 (hereinafter: Contract 1) whereby the Claimant agreed to pay the player a monthly salary of Mozambican Meticais (MZN) 70,000.

2. According to Contract 1, the Claimant and the player agreed on an option right to conclude a new contract for one season and “provided that the same conditions as this Contract are guaranteed.”

3. Contract 1 provided for a termination clause, which reads as follows: “as termination clause of this contract, the payment interested Parties and by the contracted Party of the global amount of 30,000.000,00 MZN”.

4. Moreover, according to the Claimant, on 22 February 2019, the Claimant and the player concluded a new employment contract (hereinafter: Contract 2), valid as from 1 January 2020 until 31 October 2021, whereby the Claimant agreed to pay the player a monthly salary of MZN 75,000.

5. Pursuant to contract 2, “The amount of 90,000,000,00 mt (NINETY million meticais) is defined as termination clauses of this contract, payable by the interested parties and by the employee himself.”

6. The Claimant allegedly contacted the player at the beginning of the new season (January 2020), when the player informed it that “he didn’t have a valid contract and that was a free Player”.

7. On 7 January 2020, the Claimant found out from the official Facebook page of South African club, TS Sporting (hereinafter: The Respondent 2 or TS Sporting) that the player signed a 2-year-professional contact with the latter.

8. On 13 January 2020, the Claimant informed TS Sporting that it had a valid contract with the player and requested that TS Sporting “refrain from signing any contract with the player”.

9. In its reply from 15 January 2020, TS Sporting confirmed that it had signed an employment contract with the Player and that the latter denied having signed any contract with the Claimant. Moreover, TS Sporting confirmed its ITC request of the player.

10. On 22 January 2020, the Claimant offered the Respondent 2 the transfer of the player for a transfer fee of USD 10,000 and “maintenance of 50% of player economic and sporting rights”.

11. In its correspondence dated 23 January 2020, TS Sporting refused such offer on the basis that the contract between the Claimant and the player ended on 31 October 2019.

12. According to the information contained in the Transfer Matching System (TMS), TS Sporting requested the Player’s ITC on 23 January 2020.

13. On 31 January 2020, the Claimant rejected the request, claiming that: “the contract between the former club and the professional player has not expired.”

14. On 17 February 2020, the player was granted provisional registration with TS Sporting.

15. In this context, the Claimant was of the opinion that TS Sporting shall be “liable to pay compensation for causing the Player to breach his contract.”

16. On 10 March 2020, the Claimant lodged a claim against the player and TS Sporting in front of FIFA, claiming the following: “Clube de Desportos da Costa do Sol is hereby claiming the total amount of 90.000.000 MT (Ninety Milion Meticais), equivalent to 1.452.612 USD (at today’s USD to Metical Exchange Rate of 62 Mt per USD) as per Clause x of the Player contract (The Release Clause amount as per Ninth Clause of the players valid contract)”.

17. On 18 June 2020, the Respondent 1 and the Respondent 2 (hereinafter jointly refer to as: the Respondents) requested an extension deadline for replying to the claim. Moreover, they argued that the player has never signed a second contract with the Claimant and therefore his contract expired on 31 October 2019. In this respect, the Respondents further requested to ask the Claimant to provide the original copy of the contract 2.

18. In their reply to the claim, the Respondents firstly stated that the player’s contract with the Claimant expired on 31 October 2019, that the club’s unilateral option to extend the contract is “abusive, mala fide and unenforceable” and that the “alleged option has never been exercised by Costa”. In this regard, the Respondents stated that the Claimant failed to provide “any substantial proof (e.g. letter and/or email) exchange with the Player, informing the Player about exercising of the alleged option”.

19. Moreover, the player denied to have ever received in writing any communication by the Claimant about the unilateral extension of the employment contract. The Respondents explained that the player was not under any contract when he signed one with TS Sporting.

20. Furthermore, the Respondents pointed out that the player “was not contracted at all for November 2019 and December 2019 – Contract 1 expired 31 October 2019 and the alleged dispute Contract 2 is only valid as from 1 January 2020 till 31 October 2021”, therefore, proving that the player was a free agent when he signed with TS Sporting.

21. The Respondents added that on 9 January 2020, TS Sporting addressed a letter to the Claimant, “requesting the clearance for the Player” and that on 13 January 2020, the Claimant replied to TS Sporting’s letter dated 9 January 2020 and informed the latter that the player “still has a valid contract” with the Claimant.

22. The Respondent 2 further held that on 22 January 2020, the Claimant requested to TS Sporting the payment of USD 10,000 for the 50% of the player’s “economic rights and sporting rights”.

23. In this context, the Respondents maintained that, on 23 January 2020, TS Sporting refused the Claimant’s request. It also highlighted that the Claimant did not even provide it with copy of the player’s contract in order to support its request. On the same date, the Claimant replied by stating that “is not our [the claimant] obligation to prove to any club if a player has a valid contract or not.”

24. Furthermore, the Respondents pointed out that the Claimant is now requesting compensation in the amount of USD 1,360,733, while on 22 January 2020 it requested only USD 10,000 for the 50% of the player’s economic and sporting rights. Therefore, its request shall be considered disproportionate.

25. The Respondents added that the Claimant has never “demanded the player to return for duty, despite Costa having all the contact details of the player”.

26. The Respondents further added that the player was paid MZN 70,000 monthly until the end of the season as per his contract and not MZN 75,000 monthly as shown in “Annexure 4” filed by the Claimant and that he has not received any amount deriving from the alleged signed contract 2.

27. Moreover, the Respondents maintained that by comparing the player’s signatures, it appears evident that the one on his passport and TPO declaration, are different from the one on contract 2 allegedly signed by him. According to the Respondents, even the signatures of the two contracts are different from each other.

28. In their conclusion, the Respondents maintained, inter alia, the following:

- “It is not his signature that appears on Contract 2;

- He did not terminate any contract without just cause;

- TS Sporting never induced the Player to unlawfully breach any contract. There was no contract in place between the Player and Costa at December 2019 when TS Sporting concluded an employment contract with the Player;

- The Player and TS Sporting deny being liable for any compensation of whatsoever nature;

- The Player and TS Sporting prays that the claim of Costa be dismissed with cost.”

29. The Claimant, via post, provided the original version of the contract allegedly signed on 22 February 2019 after having being invited to do so by the FIFA Administration.

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 10 March 2020. Taking into account the wording of art. 21 of the 2020 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 October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a Mozambican club, a Malawi player and a South African club, and the competence is not disputed by the parties.

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 (October 2020 edition), and considering that the claim was lodged on 10 March 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 competence of the Chamber and the applicable regulations having been established, the DRC 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 DRC emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber first acknowledged that the Respondents dispute the validity of the employment contract 2 allegedly concluded between the Claimant and the player on 22 February 2019 and consequently also the player’s contractual relationship with TS Sporing was contested by the Claimant.

6. The Chamber took note of the extensive argumentation of all parties and noted, in particular, that while the Claimant stated to have concluded a valid employment contract with the player on 22 February 2019, valid as of 1 January 2020 until 31 October 2021, the Respondents claimed that the only valid contract the player signed with the Claimant was concluded in 2017 and valid until 31 October 2019. Thus, when he initiated negotiations with TS Sporting and subsequently decided to conclude an employment contract with it, he was a free agent not bound by any valid employment contract. In addition, the player claimed that the contract 2 of 22 February 2019 was forged by the Claimant.

7. In view of the foregoing, the Dispute Resolution Chamber established that the main issues to be solved in the present dispute were first whether the parties were indeed bound by a valid employment contract and second, if so, to determine whether such employment contract had been unilaterally terminated by the player with or without just cause.

8. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequence for the party that caused the unjust breach of the relevant employment contract.

9. At this point, the DRC deemed it necessary to recall the content of art. 12 par.3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

10. Bearing in mind the foregoing, the Chamber first focused on the issue of the validity of the contract 2 dated 22 February 2019, contested by the player. In this respect, the Chamber recalled that the player accused the Claimant of having forged his signature on the aforementioned contract.

11. 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 signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

12. In continuation, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on contract 2 of 22 February 2019 as well as on other documents containing the player’s signature, provided by the parties in the context of the present dispute. In this regard, the DRC pointed out that the original version of the aforementioned employment contract was in fact provided by the Claimant, following a request of FIFA.

13. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures of the player in the various documents provided in the present affair, the DRC had no other option but to conclude that, for a layman, the signatures on such documents appear to be sufficiently similar.

14. In view of all of the above, and based on the documentation currently at its disposal, the DRC came to the conclusion that, unless proven otherwise by a neutral expertise or a decision of the competent national criminal authority, for the moment, the present claim of the Claimant is based on a valid employment contract concluded between said club and the player on 22 February 2019 and valid until 31 October 2021.

15. Consequently, on 1 January 2020, when the player concluded a new employment contract with TS Sporting, he still had a valid contract with the Claimant and – as no other justification was brought up by the player other than the invalidity of the contract 2 – he entered into more than one employment contract covering the same period.

16. Based on the foregoing, the Chamber established that the player breached his contract with the Claimant without just cause by concluding a new employment contract with TS Sporting on 1 January 2020.

17. In continuation, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the player an amount of money as compensation for breach of contract.

18. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the player 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, and depending on whether the contractual breach falls within the protected period.

19. 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 in the event of breach of contract. In this regard, the Chamber focused its attention on the compensation clause of the contract 2, which stipulates that “The amount of 90,000,000,00 mt (NINETY million meticais) is defined as termination clauses of this contract, payable by the interested parties and by the employee himself”.

20. In this context, the Chamber went on to analyse the content of the aforementioned clause of the contact 2. In particular, the Chamber noted that, even though the clause appears to be reciprocal and to apply in case of premature termination by either the player or the Claimant, the amount therein established – MZN 90,000,000 – is blatantly disproportionate in comparison to the amount the Claimant was willing to pay the player for his monthly services, i.e. MZN 75,000.

21. As a result, the Chamber unanimously concluded that such an exorbitant amount provided as compensation for breach is excessive and is not acceptable. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant 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 article provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

22. The DRC then turned their attention to the remuneration and other benefits due to the player under the existing contract and/or the new contract, which criterion was considered by the DRC to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

23. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract with the Claimant from its date of termination without just cause by the player, i.e. 1 January 2020, until its natural expiry date, i.e.

31 October 2021 and concluded that the player would have received in total the approx. amount of USD 26,952.72 as salaries (MZN 1,650,000).

24. In continuation, the Chamber stipulated that for the relevant period of time, i.e. from 1 January 2020 to 31 October 2021, the player was entitled to receive from TS Sporting the total remuneration of approx. USD 69,171.9, based on a monthly allocation of the several amounts due to him as per the new contract.

25. In line with its well established jurisprudence, the Chamber concluded that the average between the residual value of the contract with the Claimant and the remuneration of the player with TS Sporting between 1 January 2020 and 31 October 2021is thus USD 48,062.31. In view of the above, the player must pay compensation to the Claimant in the amount of USD 48,062.31.

26. Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. TS Sporting, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber recalled that according to article 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a Professional who has terminated his contract without just cause has induced that Professional to commit a breach.

27. Furthermore, taking into account the consideration under number II./3. above, the DRC referred to par. 1 and 2 of art. 24bis 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(ies) to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

28. In this regard, the DRC pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods. Against players, such consequence shall consist of a restriction on playing in official matches up until the due amounts are paid. The overall maximum duration of the restriction, including possible sporting sanctions, shall be of six months on playing in official matches.

29. Therefore, bearing in mind the above, the DRC decided that, in the event that the player and TS Sporting do not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the player and to TS Sporting, a) the player shall be restricted from playing in official matches up until the due amount is paid and for the maximum duration of six months and b) TS Sporting shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

30. Finally, the DRC recalled that the above-mentioned bans will be lifted immediately and prior to their complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

31. 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, CD da Costa do Sol, is partially accepted.

2. The Respondent 1, Chawanangwa Kaonga, has to pay to the Claimant, the following amount:

1. USD 48,062.31 as compensation for breach of contract without just cause.

3. The Respondent 2, TS Sporting, is jointly and severally liable for the payment to the Claimant of the amount mentioned in point 2. above.

4. Any further claims of the Claimant are rejected.

5. The Claimant is directed to immediately and directly inform the Respondents of the relevant bank account to which the Respondents must pay the due amount.

6. The Respondents shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due, as established above is not paid by the Respondents within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondents, the following consequences shall arise:

 1.

The Respondent 1 shall be restricted from playing in official matches up until the due amount is paid, and for the maximum duration of six months.

The Respondent 2 shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned bans will be lifted immediately and prior to their complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the bans imposed on the Respondents, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

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) 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 20 of the Procedural Rules).

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