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 2 July 2020

Decision of the

Dispute Resolution Chamber

passed on 2 July 2020,

regarding an employment-related dispute concerning the player Pierre Vareze Zang Ngayene

COMPOSITION:

Clifford J. Hendel (USA/France), Deputy Chairman Michele Colucci (Italy), member Todd Durbin (USA), member

CLAIMANT:

Pierre Vareze Zang Ngayene, Cameroon

Represented by Mr Daniel Bassega Ngoueha

RESPONDENT:

Club Express SC, Uganda

I. FACTS

1. On 28 May 2019, the Cameroonian player, Pierre Vareze Zang Ngayene (hereinafter: player or Claimant) and the Ugandan club, Express SC (hereinafter: club or Respondent) signed an employment contract valid as from 28 May 2019 until 28 May 2021.

2. According to the information available in the Transfer Matching System (TMS), the Claimant was entitled to receive a sign-on fee of Ugandan Shillings (UGX) 5,000,000 by 25 July 2019 as well as an annual salary of UGX 9,000,000 payable in twelve equal instalments of UGX 750,000 by the 25th of each month. Furthermore, the club put at disposal of the player “240,000”as means of transportation for club trainings sessions attended.

3. Art. 11 of the employment contract stipulates that “Any dispute between the club and the player regarding this employment contract shall be submitted to FUFA dispute resolution chamber of equal representation of both parties under the conditions mentioned on the FUFA Regulations on the status and transfer of players or CAS. Such decisions are final”.

4. According to the Claimant, he never received a copy of the employment contract. Moreover, still according to the Claimant, as of September 2019, the Respondent no longer allowed in the team and he did not receive any further salary.

5. On 31 December 2009, the Claimant lodged a claim against the Respondent for breach of contract. He requested the following:

 UGX 43,010,000 corresponding to:

 UGX 17,250,000 for 23 monthly salaries of UGX 750,000 each (residual value of the contract);

 UGX 5,760,000 for 24 months as transportation allowance of UGX 240,000 each;

 UGX 20,000,000 as compensation for “damages suffered by the player”.

 USD 357 as reimbursement of flight ticket to go back to Cameroon.

6. The Claimant held that despite having sent some default notices on 15 September and 9 October 2019, the Respondent did not comply with its financial and sporting obligations. Furthermore, the Claimant alleged that on 22 October 2019, the Respondent tried to make him sign a termination agreement, which he refused to sign.

7. Moreover, the Claimant referred to a letter received from the Cameroon Football Association in reply to his request asking for clarifications as to the deliverance of his International Transfer Certificate (ITC) to the Federation of Uganda Football Associations (FUFA). In this regard, the Claimant was of the opinion that, since the ITC formalities were duly completed between both federations, this meant that the Respondent was in possession of his employment contract.

8. The Claimant maintained that, due to the aforementioned circumstances and his impossibility to further provide for his living costs in Uganda, he had to purchase a flight ticket to fly back home on 12 November 2019. Therefore, the Claimant deemed that the Respondent unilaterally terminated the contract without just cause.

9. In its reply to the claim, the Respondent challenged the competence of the Dispute Resolution Chamber to deal with this matter, referring to art. 11 of the employment contract. Indeed, the Respondent stated that the FUFA Dispute Resolution Chamber was competent. Consequently, the Respondent requested the present matter to be sent “back to the Uganda FA to handle and resolve the contractual dispute between [the parties]”.

10. In its reply to the claim as to the substance, the Respondent sustained that after signing the contract the Claimant went back to Cameroon and showed up at the Respondent’s premises only on 15 July 2019 without having kept the Respondent informed of this absence.

11. In addition, having already found a replacement due to the imminent closing of the local transfer window, the Respondent offered the Claimant to mutually terminate the contract, which the latter refused.

12. Finally, the Respondent held that the Claimant failed to fulfil the requirements as to the local work permit, which led to the consequence that he was not allowed to play football in Uganda.

13. In an unsolicited correspondence, the Claimant provided the aforementioned letter from the Cameroon Football Association, by means of which it confirmed that it had duly remitted his ITC in order for the player to be registered with the Respondent.

14. Upon being asked by FIFA to clarify his contractual situation after termination, FIFA also sent the player of his contract with the club for his complete information. In this regard, the Claimant requested to amend his initial claim considering the sign-on fee contractually provided and amounting to UGX 500,000,000 the existence of which he was not fully aware. Consequently, upon request of the DRC on 20 May 2020, the case was sent back to the FIFA administration in order to ask the Respondent to provide FIFA with its comments on the amended claim. In this respect, the Respondent explained that said “sign-on fee” is actually a “contracting fee” which had been agreed with the Claimant’s intermediary to be payable upon the condition that “the party presenting work permit that clears them to work/operate within the Ugandan Boundaries which the party never fulfilled as earlier reported in our earlier submission”.

15. The Claimant informed FIFA that, following the termination of his contract with the Respondent he had remained unemployed.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

16. 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 31 December 2019. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2019; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

17. Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2020) the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Cameroonian player and a Ugandan club.

18. This being said, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 11 of the employment contract, which reads as follows: “Any dispute between the club and the player regarding this employment contract shall be submitted to FUFA dispute resolution chamber of equal representation of both parties under the conditions mentioned on the FUFA Regulations on the status and transfer of players or CAS. Such decisions are final”. The Respondent thus held that the FUFA Dispute Resolution Chamber would be competent to adjudicate the present matter.

19. With respect to the aforementioned challenge of its competence, the Chamber emphasised that in accordance with art. 22 lit. b) of the June 2020 edition of the Regulations on the Status and Transfer of Players, it is competent to deal with a matter such as the one at hand, unless the parties have explicitly opted in writing for such disputes to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. The independent national arbitration tribunal must guarantee fair proceedings and respect the principle of equal representation of players and clubs. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

20. With this in mind, the Chamber noted that the Respondent had not provided the respective documentation, such as the FUFA Regulations on the Status and Transfer of Players. Therefore, the Chamber was not in a position to establish whether the FUFA Dispute Resolution Chamber meets the requirements of being an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation.

21. Furthermore, the Chamber noted that art. 11 of the employment contract mentions that “such decisions [of the FUFA Dispute Resolution Chamber] are final”. Assuming this would be true, which, once again, the Chamber was not able to verify due to a lack of evidence as to the functioning of the FIFA Dispute Resolution Chamber, such rule would go against the requirements mentioned in the FIFA Circular no. 1010 and the FIFA NDRC Standard Regulations. Indeed, one of the parties’ fundamental rights in order to ensure fair proceedings is the right of the parties to appeal the decision of the respective NDRC.

22. In view of the above, the Chamber unanimously decided that it must reject the Respondent’s challenge of its competence. Therefore, the Chamber is competent to adjudicate the present matter and the claim is admissible.

23. Subsequently, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June 2020) and, on the other hand, to the fact that the present claim was lodged on 31 December 2019. The Dispute Resolution Chamber concluded that the October 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

24. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 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 TMS.

25. The Chamber first acknowledged that the parties had concluded an employment contract valid as from 28 May 2019 until 28 May 2021; however, the Chamber immediately noted that the Claimant had not been in possession of a copy of the employment contract. Notwithstanding, the Respondent had not actually contested that such contract had been signed. The Claimant, not being aware of the contents of the employment contract, had submitted various proof of his employment with the Respondent, such as proof of payment of his salary of August 2019 and a confirmation from the Cameroon Football Association that his ITC had indeed been issued to FUFA.

26. In any case, the Chamber underlined that, within its investigatory powers, it is able to verify the existence of an employment contract in TMS. In the matter at hand, the Claimant’s employment contract was indeed uploaded into TMS and therefore there is no doubt as to the existence of an employment relationship between the parties, nor as to the terms of such employment.

27. This having been established, the Chamber noted that the parties’ recollection of the facts leading up to the dispute diverge quite substantially. Indeed, according to the Claimant, starting in September 2019, he was not allowed to join the team anymore. During the month of October 2019, the Claimant sent the Respondent two default notice letters asking the Respondent to honour its financial and sporting obligations towards him, to no avail. Thereafter, the Respondent extended a termination agreement to him, which he refused to sign. Ultimately, the Claimant was left with no choice than to leave Uganda and return to his home country of Cameroon on 12 November 2019. In light of these alleged circumstances, the Claimant deems that the Respondent terminated the contract without just cause.

28. The Respondent, for its part, alleged that the Claimant only showed up at the club’s premises on 15 July 2019 and that in light of his absence, they had to seek for a replacement, since the transfer window was about to close. Since they found a replacement, they offered the Claimant to mutually terminate their employment relationship but the latter refused. Furthermore, the Respondent held that the Claimant failed to fulfil the requirements as to the local work permit, which led to the consequence that he was not allowed to play football in Uganda.

29. The Chamber thus highlighted that the underlying issue in this dispute, considering the conflicting position of the parties, was to determine as to whether the employment contract had been unilaterally terminated with or without just cause and which party was responsible for the early termination of the contractual relationship in question. The Chamber also underlined that, subsequently, if it were found that the employment contract was terminated without just cause, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relation.

30. The Chamber first noted that no formal termination of the contract had occurred. Considering the facts as reported by both parties, however, the Chamber determined that both parties agree on the fact that the Respondent had presented a termination agreement to the Claimant, which the latter refused to sign. In light of this fact, the Chamber concluded that, by offering a termination agreement to the player, the club clearly showed to the player that it did not intend to continue the employment relationship. Consequently, it can be established that the Respondent de facto terminated the employment contract binding the parties on 22 October 2019, when it offered the Claimant to terminate the contract.

31. With respect to such unilateral termination on the Claimant’s part and as to whether the Claimant had a just cause to terminate the employment contract, the Chamber referred to the principle of burden of proof mentioned in art. 12 par. 3 of the Procedural Rules, according to which a principle claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In this context, the Chamber underlined that the Respondent did not provide any evidence as to the alleged breach imputable to the Claimant regarding his unexplained/unjustified absence.

32. In addition, the Respondent refers to unfulfilled administrative tasks related to the work permit of the Claimant which, in accordance with art. 18 par. 4 of the Regulations and the respective jurisprudence of this Chamber, are of the sole responsibility of the Respondent.

33. Finally, the Respondent failed to provide proof of payment related to the salaries claimed in the Claimant’s default notice letters.

34. In light of the aforementioned, the Chamber concluded that the Respondent terminated the contract de facto and without just cause on 22 October 2019 by presenting him a termination agreement, which the Claimant refused to sign.

35. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, 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 an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

36. At this point, the Chamber reverted to the Claimant’s claim regarding outstanding remuneration. The Claimant claimed that the Respondent had not paid him the salaries of June, July, September and October 2019 in the total amount of UGX 3,000,000, as well as UGX 1,200,000 as monthly transportation allowances for the months of June to October 2019 and finally UGX 5,000,000 as sign-on fee.

37. With respect to the salaries and transportation costs, the Chamber reiterated that the Respondent had not provided any proof as to the payment of these amounts nor any valid justification as to the non-payment.

38. As to the sign-on fee in the amount of UGX 5,000,000, the Chamber took note of the Respondent’s argument, i.e. that the “sign-on fee” is actually a “contracting fee” which had been agreed with the Claimant’s intermediary to be payable upon the condition that “the party presenting work permit that clears them to work/operate within the Ugandan Boundaries which the party never fulfilled as earlier reported in our earlier submission”. In this regard, the Chamber emphasised that the Respondent had not provided any proof in support of such allegation. Furthermore, the employment contract explicitly states that such amount is a sign-on fee. Therefore, the Chamber determined that the amount of UGX 5,000,000 is also due.

39. In view of the above and in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent must pay the total amount of UGX 9,200,000 as outstanding remuneration.

40. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the 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 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.

41. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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 employment contract at the basis of the matter at stake.

42. 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 provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

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

44. 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 as from its date of termination without just cause by the Respondent, i.e. 22 October 2019, until 28 May 2021 and concluded that the Claimant would have received in total UGX 18,810,000 (UGX 14,250,000 as 19 monthly salaries and UGX 4,560,000 as 19 monthly transportation allowances) as remuneration had the employment contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of UGX 18,810,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

45. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

46. The Chamber recalled that the Claimant had remained unemployed after the premature termination of the employment contract and, thus, the Claimant was not able to mitigate his damages.

47. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Respondent must pay the amount of UGX 18,810,000 as compensation for breach of contract in the case at hand.

48. Furthermore and in accordance with the standard practice of the Chamber, the Claimant is awarded the price of one flight ticket in the amount of USD 357.

49. With respect to the amount of UGX 20,000,000 claimed as compensation for “damages suffered by the player”, the Chamber decided to reject such claim due to a lack of evidence of any further damages suffered and lack of contractual basis.

50. In conclusion, the Chamber decided to partially accept the Claimant’s claim. Any further claims of the Claimant are rejected.

51. 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.

52. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. In particular, the sanction against clubs shall consist in a ban 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.

53. Therefore, bearing in mind the above, the Chamber decided that in the event that the Club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

54. The Chamber recalled that the above-mentioned sanction 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, Pierre Vareze Zang Ngayene, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Club Express SC, has to pay to the Claimant, UGX 9,200,000 as outstanding remuneration.

4. The Respondent has to pay to the Claimant, UGX 18,810,000 and USD 357 as compensation for breach of contract.

5. Any further claims of the Claimant are rejected.

6. 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.

7. 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).

8. 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 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.

CONTACT INFORMATION:

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