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 22 October 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 22 October 2020,

regarding an employment-related dispute concerning the player Patrick TIGNYEMB

COMPOSITION:

Clifford J. Hendel (USA), Deputy Chairman Angela Collins (Australia), member Abu Nayeem Shohag (Bangladesh), member

CLAIMANT:

PATRICK TIGNYEMB, Cameroon

Represented by Mr. Johnny Precious

RESPONDENT:

BLOEMFONTEIN CELTIC FC, South Africa

I. FACTS

1. On an unspecified date, the Cameroonian player Patrick Tignyemb (hereinafter: the Claimant or the player) and the South African club Bloemfontein Celtic (hereinafter: the Respondent or the club) seemingly concluded a contract valid as from 1 August 2018, although the date of signature is 30 August 2017. On the second page of the contract, it is mentioned that the player’s employment will begin on 1 August 2018, this is, the year 2017 was manually corrected to 2018. The first page of the contract states: commencement date: 1 July 2018. Furthermore, as to the end date, the second page mentions 30 June 2020 but appears to be a typo, which was not corrected. The first page states: end date: 30 June 2021.

2. According to the contract’s schedule, the Claimant was entitled to the following remuneration:

 South African Rand (ZAR) 110,000 net per month for the period between 1 August 2017 and 30 June 2018;

 ZAR 120,000 net per month for the period between 1 July 2018 and 30 June 2019;

 ZAR 130,000 net per month for the period between 1 July 2019 and 30 June 2020.

Also, the Claimant was entitled to the following amounts as “image and autograph consideration”:

 ZAR 275,000 due on 30 August 2018;

 ZAR 275,000 due on 28 February 2019;

 ZAR 300,000 due on 30 August 2019;

 ZAR 300,000 due on 29 February 2020;

 ZAR 325,000 due on 30 August 2020;

 ZAR 325,000 due on 29 February 2021.

3. On 28 June 2020, the Claimant lodged a claim before the Respondent in front of FIFA, claiming the following amounts:

Compensation for breach of contract:

 ZAR 1,440,000 as residual value of the contract in the season 2019/2020, consisting of 12 monthly salaries of ZAR 120,000 each;

 ZAR 1,560,000 as residual value of the contract in the season 2020/2021, consisting of 12 monthly salaries of ZAR 130,000 each;

 ZAR 1,250,000 as the sign-on fees for the season 2019/2020 and 2020/2021;

 ZAR 40,000 as hotel expenses;

 ZAR 120,000 as annual house rent;

 USD 10,000 as legal fees.

4. The Claimant explains that he renewed his employment relationship with the Respondent on 1 July 2018 after having served the Respondent dutifully since 2008.

5. Sometime in 2019, the Respondent experienced some financial difficulties and the players went on strike on several occasions over unpaid salaries and bonuses.

6. In his capacity as team captain, the Claimant was placed in a position where he had to negotiate with the Respondent on behalf of the whole team.

7. On one occasion on an unspecified date, the Claimant met with the Respondent’s Chairman, informing the latter that the players refused to train. The Chairman allegedly pleaded with the Claimant to convince the players to play “the last game” with a guarantee that all players would receive their salaries thereafter. However, soon after that, the Respondent’s CEO informed the Claimant that all players should immediately resume training or else they would all be dismissed. The Claimant insisted that the players had made up their mind and would not resume training.

8. Further, the Claimant explains that soon after such meeting, the Claimant received a letter from the Respondent which stated that he was being dismissed, “on some unproved, trumped up charges”. The Claimant provided as proof a news article where it is mentioned that the Respondent terminated his contract with immediate effect, where he is contesting such termination and a club official states that the contract was terminated “because of an abusive rant he had with club officials”.

9. According to the Claimant, the Respondent accused him of breaching art. 4.2.1 of the employment contract for missing trainings, as well as art. 4.2.5 for lacking respect towards club officials, and art. 4.2.21 for disobeying the orders of a senior club official, accusations which he all denied. As to missing trainings, the Claimant held the view that this was justified in light of the ongoing dispute regarding the payment of his remuneration and that of his teammates.

10. The Claimant further asserted that in the letter of termination, the Respondent had stated that it was entitled to terminate the contract without notice or payment in lieu of notice on grounds justifying summary dismissal in accordance with common law. In this regard, the Claimant insisted on the fact that he had only informed the Respondent of his teammates’ position as to the dispute regarding the unpaid remuneration and that this does not justify summary dismissal under common law.

11. Moreover, the Claimant emphasised that the Respondent had no proof of any inappropriate conduct on his part. Finally, the Claimant underlined that his dismissal drew the ire of the team’s fans, to the point that, facing enormous pressure, the Respondent issued a letter on according to which it withdrew the termination of the contract.

12. The said letter stated as follows:

“This is to certify that the Chairman of the above-mentioned team Mr Max Tshabalala has withdrawn the termination of contract letter that was handed over to you last week Tuesday (07 May 2019). Therefore, you now form part of the team with immediate effect. Hope that you will find this in order. Kind regards”.

13. Despite being invited to do so, the Respondent failed to submit its reply to the Claimant’s claim in a correct way before the expiry of the deadline on 26 July 2020. In this respect, it appears that on 26 July 2020, the Respondent send a response to the Claimant’s claim to the (wrong) email address psdfifa@fifa.com).

14. After having been requested by FIFA, the Claimant confirmed that he signed a new contract with the South African club Chippa United, valid for the period between 1 July 2019 and 30 June 2021, based on which the Claimant was entitled to a monthly salary of ZAR 100,000 for the period between 1 July 2019 and 30 June 2020 and a monthly salary of ZAR 110,000 for the period between 1 July 2020 and 30 June 2021.

15. The Claimant further confirmed that on 25 February 2020, he signed a termination agreement with Chippa United, according to which the contract in place would be terminated and the Claimant was entitled to the total amount of ZAR 450,000, or the amount of ZAR 2,700,000, in case Chippa United would fail to meets its obligations as the termination agreement. According to the Claimant, Chippa United failed to meet said obligations.

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 28 June 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 Cameroonian 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 28 June 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 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.

5. First of all, the members of the Chamber acknowledged that, apparently on 1 August 2018, the Claimant and the Respondent had concluded an employment contract, although a signature date of 30 August 2017 is mentioned. Furthermore, the members noted that the duration of the contract was not entirely clearly phrased, as the starting date of the contract is manually corrected from 1 August 2017 to 1 August 2018, and the end date of the contract is indicated as 30 June 2020.

6. However, from the contents of the payment schedule laid down in the contract, which provided for payments made between 1 July 2018 and 30 June 2021, the members of the Chamber were sufficiently satisfied that the Claimant and the Respondent entered into an employment relationship which would cover the period between 1 July 2018 and 30 June 2021.

7. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of ZAR 4,250,000 as compensation for breach of contract, as well as the payment of hotel expenses, house rent and legal costs, asserting that the Respondent had unilaterally terminated the contract in force between him and the Respondent in May 2020 without just cause, as a result of a dispute between the Respondent and its players about the payment of overdue salaries.

8. In continuation, the Chamber observed that the Respondent submitted its reply to the claim after notification of the closure of the investigation of the matter at hand, having sent its previous correspondence to a non-existing email address that did not belong to FIFA. As a result, in line with art. 9 par. 4 and art. 9bis par. 2 of the Procedural Rules, as well as the Chamber’s constant jurisprudence in this regard, the Chamber decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant.

9. In this context, the Chamber acknowledged that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the contract had been validly terminated, with or without just cause, by one of the parties in May 2020. The Chamber also underlined that, subsequently, it would be necessary to determine the consequences of the early termination of the contractual relation.

10. In this respect, the Chamber further noted that, as to the exact date of the termination of the contract, the Claimant was not able to demonstrate in a clear way when and how the contract was terminated by the Respondent. No copy of a termination letter, nor a clear and unambiguous explanation of the Claimant about the circumstances leading to the termination was provided.

11. On the other hand, the members of the Chamber noted that the Claimant was able to demonstrate that the Respondent, on 13 May 2020, did withdraw its “termination of contract letter” dated 7 May 2019, as he provided documentary evidence, proving said circumstance. What is more, said circumstance that is not contested by the Respondent.

12. Moreover, the Chamber wished to point out that, although the Respondent did not submit its reply to the Claimant’s claim in time, from the documentation submitted by the Claimant, it appeared that the initial termination of the contract was made because of a dispute between the Respondent and its players about the payment of overdue salaries. Later on, said termination was allegedly withdrawn.

13. In view of the foregoing, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

14. Moreover, the Chamber first of all observed that the circumstances allegedly leading to the initial termination of the contract, could not legitimately be considered as being severe enough to justify the termination of the contract with just cause. Moreover, the Chamber pointed out that the unilateral termination of the contract is an irreversible decision, that in principle cannot be withdrawn at a later point in time.

15. On account of the above, the Chamber decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 7 May 2019 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause.

16. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

17. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. However, taking into account the respective circumstances of the matter at hand, as well as the Claimant’s claim, the Chamber noted that at the date of termination of the contract, there was no remuneration outstanding.

18. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract.

19. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.

20. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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 employment contract at the basis of the matter at stake.

21. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the employment contract on 7 May 2019, the contract would run for another two seasons, in which a total of ZAR 1,440,000 for the 2019/2020 season and an amount of ZAR 1,560,000 for the 2020/2021 season were still to be paid. Consequently, taking into account the financial terms of the contract and the supplementary agreement, the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to ZAR 4,250,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

22. In continuation, the Chamber remarked that following the early termination of the employment contract at the basis of the present dispute the Claimant had found new employment with the South African club Chippa United, where he signed an employment contract, valid as from 1 July 2019 until 30 June 2021, in accordance with which he would be remunerated with a monthly salary of ZAR 100,000. What is more, the Chamber noted that said contract was terminated by the parties on 25 February 2020, and the Claimant, return or said termination, was entitled to the an additional amount of ZAR 450,000. Until 25 February 2020, the Claimant had been entitled to the total amount of ZAR 800,000.

23. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant to mitigate his damages, such remuneration under the new employment contract, i.e. ZAR 1,250,000 shall be taken into account in the calculation of the amount of compensation for breach of contract.

24. In view of all of the above, the Chamber decided that the Respondent must pay the amount of ZAR 3,000,000 to the Claimant as compensation for breach of contract without just case, which is considered by the Chamber to be a reasonable and justified amount as compensation.

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

26. Furthermore, taking into account the consideration under number II./3. above, the Chamber 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 to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

27. In this regard, the Chamber 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.

28. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts 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 Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

29. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Patrick Tignyemb, is partially accepted.

2. The Respondent, Bloemfontein Celtic FC, has to pay to the Claimant, the following amount:

- South African Rand (ZAR) 3,000,000 as compensation for breach of contract without just cause.

3. Any further claims of the Claimant are rejected.

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

5. The Respondent 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).

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

 1.

The Respondent 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 ban mentioned will be lifted immediately and prior to its 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 ban of three entire and consecutive registration periods, 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).

CONTACT INFORMATION:

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